Storm Brewing Over AU Justice Proposals

Stability in Sudan is chief concern of African Union – but its idea of justice might not be accepted by all.

Storm Brewing Over AU Justice Proposals

Stability in Sudan is chief concern of African Union – but its idea of justice might not be accepted by all.

Friday, 25 September, 2009
A high-level report from the African Union, AU, is expected to emphasise the importance of justice and reconciliation in achieving a lasting peace for the Darfur region of Sudan.

But some fear that such recommendations could represent an attempt by the AU to wrestle power away from the International Criminal Court, ICC, and shield President Omar al-Bashir and his associates from justice.

In July, the AU said that it was unwilling to co-operate with a decision by the ICC to indict Bashir, arguing that the ruling threatened peace and stability in Sudan.

In a resolution, the AU urged its members – some of which are also members of the ICC – to grant the Islamic leader free travel across the continent without fear of arrest.

The African Union Panel on Darfur, AUPD, was set up in February ahead of the issuance of the arrest warrant for Bashir, in order to look at ways of bringing peace to Darfur.

It is headed by former president of South Africa Thabo Mbeki, who, during a recent visit to Khartoum, stressed that justice and reconciliation are an integral part of the peace process.

Barney Afako, a spokesman for the AUPD, says that the report should be finalised by the beginning of October.

Although the contents of the report are not yet public, sources say that it is likely to pay close attention to ways in which home-grown justice mechanisms can be used to promote peace and stability in the country.

Afako confirms that AUPD discussions have examined how so-called hybrid courts could be used to create a middle-ground between international justice and local courts.

Hybrid courts, which often use external judges to bolster the legitimacy of domestic courts, have been used to prosecute war crimes in other countries, including the former Yugoslavia and Rwanda.

However, any push towards hybrid courts is likely to meet stiff opposition from the Sudanese government, who have persistently rejected any calls for foreign interference in the national legal system.

“The Sudanese constitution and laws reject the participation of foreign judges in Sudanese courts," said Fathi Khalil, head of the Sudanese Lawyers Union, which has allied itself with the government against the ICC indictment.

“We have an independent and fair judicial system and so there is no need for hybrid courts.”

Another idea that has been floated, which finds more favour with Khalil, is the possibility of establishing a truth and reconciliation commission, which would work in a similar manner to the courts that were set up in South Africa immediately after the collapse of the apartheid system.

Truth and reconciliation courts were introduced in South Africa in order to move beyond the shadow of the past by granting amnesty to those that had carried out politically-motivated abuses, in return for full disclosure of their crimes.

But critics argue that any similar system in Sudan would just be a way of preventing those guilty of war crimes from facing justice.

“This is simply an exit strategy for Bashir,” said Ahmed Hassan, a spokesman for the Justice and Equality Movement, JEM, a rebel movement in Darfur. “It represents an attempt to help perpetrators at the expense of victims. Sudan's judicial system is not independent and it cannot try war crimes. The only acceptable legal mechanism for this [at the moment] is the ICC.”

Hassan dismisses any comparison with the truth and reconciliation commission of South Africa.

“The situation in South Africa was very different,” he said. “The political order actually recognised the crimes that had been committed. They had decided to abolish the apartheid system and move forwards. In Sudan, the regime that is responsible for these crimes is still in power, and abuses on the ground are still continuing.”

Hassan says that, given time, he would like to think that Sudan would be able to administer its own justice, but this would require an overhaul of the judicial system first, to create a system that is truly independent.

Amin Maki Madani, a respected human rights lawyer in Khartoum, agrees.

"The fairness of the judicial system has been destroyed in the last 20 years," he said. "The Sudanese justice system does not have the laws and experience to look into violations of international humanitarian laws."

Maki stresses the need to have cross-party political support for a truth and reconciliation commission before moving ahead with this option.

But it looks as though such widespread support will be difficult to muster.

Yousif Hussien, a spokesman for the country's Communist Party, says that it is too soon to consider forgiving perpetrators of war crimes.

"Those that have committed abuses in Darfur should be punished before a truth and reconciliation commission is established," Hussien said. “There are also other crimes in the region that have not yet been considered.”

The AU's report on justice for Darfur is being seen as an opportunity for the body to prove its resolve in doing something about Sudan, having been widely criticised by the international community for not backing the ICC's decision to indict Bashir.

And, according to Sarah Nouwen, a researcher at Cambridge University in the UK, the stakes are high.

“The AU has a legitimate concern because, if Sudan disintegrates, it will be African nations that bare the cost,” she said.

Afako, from the AUDP, says that things are far more complex than prosecuting the perpetrators of war crimes.

“We shouldn't just concentrate on the narrow context of justice, but on the long-term stability of Sudan,” he told IWPR. “Stability in Sudan is crucial for the whole region. Nine states border the country, and all are directly affected by conflict within its borders.

“Moreover, Sudan reflects many of the diversities that other African countries have. If these differences can co-exist in Sudan, this sends a powerful message to other countries in the region. That is why a solution must be found for Sudan and why the African Union is investing this kind of support.”

Besides Bashir, the ICC has also indicted two others for war crimes in Darfur: Ahmad Muhammad Harun, the former ministry of humanitarian affairs, and Ali Kushayb, a former senior commander of the Janjaweed militia – armed gunmen in Darfur that were reputedly backed by the government.

Ahmed Ilsheik is an IWPR trainee in Khartoum. Blake Evans-Pritchard, IWPR Africa editor, contributed to this report.
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